ADDRESS BY MR. PRAVIN
H PAREKH, PRESIDENT HARVARD CLUB OF INDIA
AT HARVARD LAW SCHOOL
ON 8TH OCTOBER, 2013
ON
“PUBLIC INTEREST LITIGATION: BOON TO THE INDIAN PUBLIC”
I.
INTRODUCTION
1.
I consider it a great
privilege to have this opportunity of addressing you teachers and students,
fellow Harvardians in this great law school of this greatest educational
institution called "Harvard”. Its alumni occupy driver’s seats in all
spheres of life, in almost all countries in the entire world which is too well
known to be elaborated. Whenever I come here I remember good old days when I
used to sit with other fellow students including the then Sitting Chief Justice
of Supreme Court of Massachusetts. It is my great honor to speak about a common
strain of our judicial philosophy, Public
Interest Litigation.
2.
It won't be an
exaggeration to say that Public Interest Litigation in India has strengthened
our democracy and has prevented the poor, downtrodden and economically, socially
and politically disadvantaged suffering from inequality and injustice. Since
1947 democracy has survived and progressed in India, whereas in most of the countries
in our neighbourhood it does not exist at all or exists periodically. The
Indian democracy’s strength and vibrancy places it in a globally unique
position.
3.
Pandit Jawahar Lal
Nehru the first Prime Minister of India in his address before the Constituent Assembly
on the midnight of 15th August 1947 when India beckoned independence
said:
“Freedom and power bring responsibility. The
responsibility rests upon this Assembly, a sovereign body representing the
sovereign people of India. The past is over and it is the future that beckons
to us now. That future is not one of ease or resting but of incessant striving
so that we might fulfil the pledges we have so often taken and the One we shall
take today. The service of lndia means the service of the millions who suffer.
It means the ending of poverty and ignorance and disease and inequality of
opportunity. The ambition of the greatest man of our generation has been to
wipe every tear from every eye. That may be beyond us but as long as there is
tears and suffering, so long our work will not be over.”
It
was this utilitarian spirit with which the Constituent Assembly, took two
years, eleven months and seventeen days to come out with the first draft of the
Constitution under the guidance of Dr. B. R. Ambedkar who was the Chairman of
the Drafting Committee.
4.
Influenced by some of
the world’s finest drafted Constitutions, the Indian Constitution adopted a few
crucial features from these Constitutions. It borrowed the concept of
Separation of Powers from the American Constitution inter alia. One can also
see an inspiration from the Canadian Constitution when one looks at the quasi
federal nature of Distribution of Powers between the Centre and the State,
where the former is more powerful than the later with power over residuary
matters as well. Similarly, Suspension of Fundamental Rights in part III of the
Constitution under Article 358 is similar to the corresponding provisions in
the Weimer Constitution of Germany. The Directive Principles enshrined in Part
IV of the Constitution to look after the have not’s and handling by the
Legislature and Judiciary have been inspired from the Irish Constitution. It
thus appears to me as if the various Constitutions of the world were critically
analysed to draw some very crucial features out of them so as to tailor make
the Indian Constitution for the Indian conditions and democracy to have
internal safeguards for people to be the real sovereigns.
5.
The preamble to the Indian Constitution reads as under:
“WE, THE PEOPLE OF INDIA, having solemnly resolved to constituent
India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to
all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression,
belief, Faith and worship;
EQUALITY of status and of opportunity; and to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and integrity
of the NATION;”
This
endeavour of establishing a ‘Sovereign Socialist Secular Democratic Republic’
with ‘Justice, Liberty
and Equality’ at the forefront gets immense momentum from the Part III and Part
IV of the Constitution which enumerate the Fundamental Rights and Directive
Principles of State Policy respectively.
In his book ‘The Indian
Constitution: Cornerstone of a Nation’, Granville
Austin describes these parts as the ‘Conscience of the Constitution’ that can
push medievalism based on birth, religion, custom, and community and
reconstruct her social structure on modern foundations of law, individual
merit, and social education.
6.
Article 14, 19 read
with Article 21 forms the golden triangle of Fundamental Rights which form a
bulwark of protection for the citizens. The mandate of Article 14 is not to
deny any person equality before the law or equal protection of the laws within
the territory of India. This Article has been given expansive
meaning and interpretation which has given higher Judiciary the right to judicially
review the action of the Legislature as well as Executive. Fundamental freedom
of speech and expression as laid down in Article 19 is also one of the
cornerstones of the Constitution. In fact, courts have expanded its scope by
empowering the media to resist any unreasonable restrictions or unreasonable
taxation on media as providing citizens to enjoy the freedom of speech and
expression in consonance with Article 19(1)(a). The Court has protected the
media so that they can permit readers and viewers to exercise their right of
freedom of speech and expression. In addition to these two articles, Article 21
also provides that no person shall be deprived of his life or personal liberty
except according to procedure established by law. The interpretation
given by our Supreme Court is that the procedure established by law has to be just,
fair and reasonable, both substantively as well as procedurally. In
fact the right to primary education has been included in Article 21 on the
ground that life does not mean animal existence and the Parliament has accepted
the Supreme Court’s verdict and inserted Article 21A- ‘Right to Education’ in Fundamental
Rights in the Constitution. In addition to these, Article 32 of the
Constitution which empowers citizens to approach the Supreme Court to
enforce their Fundamental Rights is also a Fundamental Right which gives power
to the Supreme Court to issue appropriate writs orders or directions in case
any of these rights are violated.
7.
It was a priority for
the framers of the Constitution to honour human rights in general along with
Fundamental Rights.
Our founding fathers were conscious that without ensuring basic needs of food, shelter, clothing and human dignity the Democracy can't survive. Therefore, Part IV of our Constitution quite extensively provides for the goals which our State should strive to achieve. The Directive Principles of State Policy are directions to the state to achieve economic and social rights as proposed in the preamble. Article 39 provides for principles of governance to be followed by the state to ensure adequate means of livelihood. Article 39A requires the state to provide free legal aid. Article 41 to 43 mandate the state to endeavour to secure to all citizens the right to employment and livelihood, equal distribution of wealth and other rights. Thus, we can say that these humanitarian and socialistic indicators were aimed at the pursuit of a social revolution envisaged in India by the Constituent Assembly.
Our founding fathers were conscious that without ensuring basic needs of food, shelter, clothing and human dignity the Democracy can't survive. Therefore, Part IV of our Constitution quite extensively provides for the goals which our State should strive to achieve. The Directive Principles of State Policy are directions to the state to achieve economic and social rights as proposed in the preamble. Article 39 provides for principles of governance to be followed by the state to ensure adequate means of livelihood. Article 39A requires the state to provide free legal aid. Article 41 to 43 mandate the state to endeavour to secure to all citizens the right to employment and livelihood, equal distribution of wealth and other rights. Thus, we can say that these humanitarian and socialistic indicators were aimed at the pursuit of a social revolution envisaged in India by the Constituent Assembly.
8.
In order to
ensure these protections that Indian citizens are entitled to, do not remain as
empty declarations, the founding fathers also made various provisions in the
Constitution to establish an Independent and powerful Judiciary. Our Supreme
Court and High Courts are empowered to even strike down laws which are made by
Legislatures both Parliament as well as State Legislatures, which are either made
without legislative competence to make laws or which violate any Fundamental Right. One
special feature which has been introduced by the Indian Supreme Court by
interpretation is that, the Supreme Court can also strike down any amendments
to Constitution if they violate the basic structure or basic feature of the Constitution. The
Supreme Court in a series of judgments starting with the famous case of Kesavananda
Bharati v. State of Kerala reported in (1973) 4 SCC 225 225 did not exhaustively enumerate what is the basic
structure but mentioned some features of
the Constitution which undoubtedly can be said to be basic structure like
Supremacy of the Constitution; Republican and democratic form
of Government; Secular character of the Constitution; Separation of powers
between the Legislature, Executive and the Judiciary; and Federal character of
the Constitution as well as certain basic rights guaranteed by Part III of the
Constitution
9.
I would like to mention
briefly the scope of jurisdiction of Supreme Court of
India. The Supreme Court has original, appellate and advisory
jurisdiction. Its exclusive original jurisdiction extends to any dispute between
the Government of India and one or more States or between the Government of
India and any State or States on one side and one or more States on the other
or between two or more States, if and insofar as the dispute involves any
question (whether of law or of fact) on which the existence or extent of a
legal right depends.
10.
Article 32 of the Constitution confers
original jurisdiction to the Supreme Court with regard to enforcement of
Fundamental Rights wherein court can issue various writs, orders and directions.
This power has been exercised by Supreme Court to scrutinize actions of
Legislatures and Executive and to give directions in affirmative manner
including at times making legislation when legislatures for many reasons don't
want to legislate. Of course such legislation would be operative till legislature
makes valid law on that subject matter. At times attempts made by Legislatures
are struck down as invalid. It is confidence of people and public opinion which
has permitted our Supreme Court to do what highest courts in many countries are
unable or unwilling to do.
11.
Under the Arbitration
and Conciliation Act, 1996, in case of International Arbitration Supreme
Court appoints arbitrators if parties have not been able to appoint
arbitrators.
12.
The appellate
jurisdiction of the Supreme Court can be invoked by a certificate granted by
the High Court concerned under Article 132(1), 133(1) or 134 of the
Constitution in respect of any judgement, decree or final order of a High Court
in both civil and criminal cases, involving substantial questions of law as to
the interpretation of the Constitution.
13.
In addition,
the right to approach Supreme Court from orders passed by any courts or
tribunals is conferred on every citizen and in certain cases even on aliens. The
Supreme Court however uses its discretion whether leave to entertain such cases
should be granted or not. The Supreme Court has also a very wide appellate
jurisdiction over all Courts and Tribunals in India in as much as it may, in
its discretion, grant Special Leave to Appeal under Article 136 of the
Constitution from any judgment, decree, sentence or order in any matter passed
or made by any Court or Tribunal in the territory of India.
14.
The Supreme
Court has special advisory jurisdiction in matters which may specifically be
referred to it by the President of India under Article 143 of the Constitution.
15.
There are
provisions for reference or appeal to the Supreme Court under Article 317(1) of
the Constitution, Section 257 of the Income Tax Act, 1961, Section 7(2) of the
Monopolies and Restrictive Trade Practices Act, 1969, Section 130-A of the
Customs Act, 1962, Section 35-H of the Central Excises and Salt Act, 1944 and
Section 82C of the Gold (Control) Act, 1968. Appeals also lie to the Supreme
Court under the Representation of the People Act, 1951, Monopolies and
Restrictive Trade Practices Act, 1969, Advocates Act, 1961, Contempt of Courts
Act, 1971, Customs Act, 1962, Central Excises and Salt Act, 1944, Enlargement
of Criminal Appellate Jurisdiction Act, 1970, Trial of Offences Relating to
Transactions in Securities Act, 1992, Terrorist and Disruptive Activities
(Prevention) Act, 1987, Consumer Protection Act, 1986 etc. etc.
16.
Election Petitions
under Part III of the Presidential and Vice Presidential Elections Act, 1952
are also filed directly in the Supreme Court to challenge the validity of
election of President as well as Vice President of India.
II.
PUBLIC
INTEREST LITIGATION IN INDIA
17.
Before discussing
about Public Interest Litigation in India, the above discussed background was
very essential. Over the last four decades or so, the device of Public Interest
Litigation (here in after referred to as PIL) has come to be recognized as a
distinguishing feature of the higher Judiciary in India. This has made our Supreme Court perhaps the most
powerful court in the world. Even though Indian
courts cannot take credit for initiating the concept of PIL, they have in due
course emerged as the platform where this device has been repeatedly and
effectively used to protect the interests of disadvantaged groups as well as
address matters of collective concern. What Supreme Court has done is far
beyond and far better than the traditional understanding of PIL.
18.
Technicalities like
the filling procedure, rules of evidence and a pedantic approach in the
interpretation of Fundamental Rights resulted in a loss of link between the
rights guaranteed by the Constitution of India and the laws made by the
legislature on the one hand and the vast majority of illiterate citizens on the
other. But the Judges of the Supreme Court prepared groundwork, from
mid-1970s to early 1980s, for the birth of PIL in India in a systematic manner which
included modifying the traditional requirements of locus standi, liberalizing
the procedure to file writ petitions, creating or expanding Fundamental Rights,
overcoming evidentiary problems, and evolving innovative remedies has done
wonders. If one can communicate with our founding fathers in their grave, I am
sure they would be pleasantly surprised about the working of the Constitution
they made as it has far surpassed their expectations.
19.
Although most of the
proceedings in the Supreme Court arise out of the judgments or orders passed by
the High Courts, but the Supreme Court has been entertaining
matters in which interest of the public at large is involved by exercising
original jurisdiction under Article 32 of the Constitution. The Court can be
moved by any individual or group of persons either by filing a Writ Petition at
the Filing Counter of the Court or by addressing a letter to the Supreme Court
or High Courts, highlighting the question of public importance for invoking
this jurisdiction. The Constitutional provisions that enable the Supreme Court
as well as the High Courts to deal with these matters pertaining to a PIL are
Article 32 and 226 of the Constitution respectively. But Article 226 has a
broader scope than Article 32. The Supreme Court may issue a writ only in case
of infringement of Fundamental Rights guaranteed under the Constitution. But in
case of High Courts they can issue a writ not only for enforcement of
Fundamental Rights but also for “Other Purposes”. However in public interest this difference has
practically disappeared.
20.
Several matters of
public importance have become landmark cases. This concept is unique to the
Supreme Court only and perhaps no other Court in the world has been exercising
this extraordinary jurisdiction.
III.
THE
RULE OF LOCUS STANDI
21.
In law, standing or
locus standi is the term for the ability of a party to demonstrate to the court
sufficient connection to and harm from the law or action challenged to recognize
that party's participation in the case. In furtherance to justice and fair
play, Courts have deviated from this general principle and have made a spacious
construction of the concept of locus standi. Thus, diluting the concept of
locus standi, forms the very spirit of PIL. One of the earliest decisions of
the Supreme Court of India which spells out this very principle of public
justice is that of Mumbai Kamagar Sabha vs. Abdul Thai reported in (1976) 3 SCC
832. In a series of cases decided around this time, the court qualified these
martyr litigations beyond individual ones owing to their beneficent potency and
their consideration for wider representation which strengthens the rule of law.
In fact in the case of Bar Council of Maharashtra v. M.V. Dabholkar reported in
(1975) 2 SCC 702, the Supreme Court made a very interesting observation and
held that the possible apprehension that widening legal standing with a public
connotation may unloose a flood of litigation which may overwhelm the judges is
misplaced because public resort to court to suppress public mischief is a
tribute to the justice system. Thus, our current jurisprudence is a broad-based
and people-oriented, and envisions access to justice through ‘class actions’,
‘public interest litigation’, and ‘representative proceedings’. Hence in the
case of Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India
& Ors reported in (1981) 1 SCC 246 it was laid down that:
“Indeed, little Indians in large
numbers seeking remedies in courts through
collective proceedings, instead of being driven to an expensive plurality of litigations, is an
affirmation of participative justice in our democracy.
We have no hesitation in holding that the narrow concepts of `cause of action', `person aggrieved'
and individual litigation are becoming
obsolescent in some jurisdictions.”
22.
In
the same year in the case of S.P. Gupta v. Union of India, 1981 Supp SCC (1) 87
popularly known as the law stood settled in black and white. The Supreme Court went
on to hold that:
“Where
a legal wrong or a legal injury is caused to a person or to a determinate class
of persons by reason of violation of any constitutional or legal right or any
burden is imposed in contravention of any constitutional or legal provision or
without authority of law or any such legal wrong or legal injury or illegal
burden is threatened and such person or determinate class of persons by reasons
of poverty, helplessness or disability or socially or economically
disadvantaged position unable to approach the court for relief, any member of
public can maintain an application for an appropriate direction, order or writ
in the High Court under Article 226 and in case any breach of fundamental
rights of such persons or determinate class of persons, in this court under
Article 32 seeking judicial redress for the legal wrong or legal injury caused
to such person or determinate class of persons.”
23.
In
the case of Pt. Parmanand Katara v. Union of India reported in (1989) 4 SCC 286,
the Supreme Court accepted an application by an advocate that highlighted a
news item titled "Law Helps the Injured to Die" published in a
national daily, The Hindustan Times. The petitioner brought to light the
difficulties faced by persons injured in road and other accidents in availing
urgent and life-saving medical treatment, since many hospitals and doctors
refused to treat them unless certain procedural formalities were completed in
these medico-legal cases. The Supreme Court directed medical establishments to
provide instant medical aid to such injured people, notwithstanding the
formalities to be followed under the procedural criminal law. Since then
starting from labour rights, environmental protection to euthanasia, courts in
India have long withdrawn from the pedantic application of locus standi. In
fact according to a Compilation of Guidelines to be followed for Entertaining
Letters/Petitions Received issued by the Supreme Court in 1988 the following
matters inter alia can be adjudicated in a PIL:-
·
Bonded Labour matters
·
Matters of neglected children
·
Exploitation of casual labourers and
nonpayment of wages to them (except in individual cases)
·
Matters of harassment or torture of persons
belonging to Scheduled Castes, Scheduled Tribes and Economically Backward
Classes, either by co-villagers or by police etc.
24.
The Supreme Court in the case of Union of India v.
Association for Democratic Reforms & Anr. reported in (2002) 5 SCC 294 held that High Court
has ample jurisdiction under Article 32 read with Articles 141 and 142 of
Constitution of India to issue necessary direction to executive to sub serve
public interest, to fill the void in absence of suitable legislation and gave
the following directions:
“56. The Election Commission is directed to call for
information on affidavit by issuing necessary order in exercise of its power
under Article 324 of the Constitution of India from each candidate seeking
election to Parliament or a State Legislature as a necessary part of his
nomination paper furnishing therein, information on the following aspects in
relation to his/her candidature:
1. Whether
the candidate is convicted/acquitted/discharged of any criminal offence in the past---- if any, whether he is punished
with imprisonment of fine.
2. Prior to
six months of filing of nomination, whether the candidate is accused in any pending case, of any
offence punishable with imprisonment
for two years or more, and in which charge is framed
or cognizance is taken by the court of law. If so, the details thereof.
3. The
assets (immovable, movable, bank balance etc.) of a candidate and of his/her spouse and that of dependants.
4. Liabilities,
if any, particularly whether there are any overdues of any public financial institution or government dues.
5.
The educational qualification of the
candidate.”
25.
Subsequently, the Representation of the People
(Amendment) Ordinance, 2002 (4 of 2002) was promulgated on 24th
August, 2002. The Ordinance was later replaced by the Representation of the
People (Third Amendment) Act, 2002 (72 of 2002) which received the assent of
the President on 28th December, 2002. Sections 33-A and 33-B were
inserted by the said Amending Act.
26.
The Supreme Court in the case of People’s Union for
Civil Liberties (PUCL) and Anr. v. Union of India (UOI) & Anr. reported in
(2003) 4 SCC 399 observed that
the Legislature is entitled to change the law with retrospective effect which
forms the basis of a judicial decision but this exercise of power is subject to
constitutional limitations. Therefore it cannot enact a law which is violative
of fundamental right. It further observed that the attempt of the Court should
be to expand the reach and ambit of the fundamental rights by process of
judicial interpretation and it has been done by this Court consistently. In
result, Section 33-B of the Amended Act held to be illegal, null and void and
petitions disposed of accordingly.
IV.
SUO MOTO ACTIONS
27.
A
very welcome trend that has emerged with respect to PILs in India is that
courts have started taking suo moto actions based on media reports or letters
from the general public. Suo moto cognizance means "take notice of the
fact on its own”. In numerous instances, the courts have acted on their own
motion by taking cognizance including matters involving the abuse of prisoners,
bonded labourers and inmates of mental institutions, through letters addressed
to sitting Judges. Judges pick up a news item which shows that judicial help is
required and lay down the general principles to be followed in
future.
28.
The
debate is going on that the Judiciary is trespassing on the functions of Legislature
and Executive. Sometimes the criticism may be justified, sometimes it
is not justified and sometimes it is done by people who are adversely affected
by the judicial intervention not in public interest but in private
interest. But by and large Judiciary is doing a good job. This debate will go on but by and large
people are happy about use of instrument of PIL by courts.
29.
The
practice of initiating proceedings on the basis of letters has now been
streamlined and has come to be described as ‘epistolary jurisdiction’. This new
dimension was acquired by the jurisprudence of PIL with the decision in the
case of Sunil Batra & Ors. v. Delhi Administration reported in (1978) 4 SCC
494. It was initiated by a letter that was written by a prisoner lodged in jail
to a Judge of the Supreme Court. The prisoner complained of a brutal assault
committed by a Head Warden on another prisoner. The Court treated that letter
as a writ petition.
30. A noteworthy observation with respect to suo moto action has also been made in the case of Raju Ramsing Vasave v. Mahesh Deorao Bhivapurkar & Ors. reported in (2008) 9 SCC 54. Dealing with the concept of PIL it was held that the Court is bestowed with a greater responsibility by the makers of the Constitution in terms of Articles 141 and 142. I would like to quote Article 141 and 142 of the Constitution of India, which read as follows:
“141. Law declared by Supreme Court to be binding on all courts - The law declared by the Supreme Court shall be binding on all courts within the territory of India.
142. Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc. - (1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.
(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.”
In the judgment reported in (2008) 9 SCC 54 in a Special Leave Petition under Article 136, after coming to the conclusion that the petitioner did not have the locus standi, the Supreme Court observed:
“…this Court, however, when a question is raised, can take cognizance of a matter of such grave importance suo moto. It may not treat the special leave petition as a PIL, but, as ‘public law litigation’. It is, in a proceeding of that nature, permissible for the court to make a detailed enquiry with regard to the broader aspects of the matter although it was initiated at the instance of a person having a private interest... if such an enquiry sub serves the greater public interest and has a far-reaching effect on the society, in our opinion, this Court will not shirk its responsibilities from doing so.”
31. Taking a clue from the American Supreme Court's decision in the case of ‘Gideon v Wainwright’, where a post card from a prisoner was treated a petition, the Supreme Court of India has accepted letters and telegrams as petitions and in 1988 has issued the ‘Compilation of Guidelines to be followed for Entertaining Letters/Petitions Received’ which I have already mentioned before. This compilation stipulates that all letter-petitions received by a PIL Cell will first be screened in the Cell and only such petitions as are covered by the categories laid down will be placed before a Judge to be nominated by Hon'ble the Chief Justice of India for directions after which the case will be listed before the Bench concerned. If a letter-petition is to be lodged, the orders to that effect should be passed by Registrar (Judicial) (or any Registrar nominated by the Hon'ble Chief Justice of India), instead of Additional Registrar, or any junior officer. In fact the court has also been very conscious on the possibility of frivolous PILs flooding the court therefore in the case of Divine Retreat Centre v. State Of Kerala & Ors reported in (2008) 3 SCC 542 the Supreme Court has held that High Court Judges cannot treat anonymous letters and petitions listing allegations against individuals or institutions as PIL and order suo moto investigation.
V. APPOINTMENT OF AMICUS CURIAE
32.
The Latin term amicus
curiae stands for a ‘friend of the court’. If a petition is received from the
jail or in any other criminal matter if the accused is unrepresented then an
Advocate is appointed as amicus curiae by the Court to defend and argue the
case of the accused. In civil matters also the Court can appoint an Advocate as
amicus curiae if it thinks it necessary in case of an unrepresented party or in
any matter of general public importance or in which the interest of the public
at large is involved. The court also assigns a lawyer (Amicus Curiae) to PIL
petitioner who may be inarticulate in the presentation or may not understand
the legal dimensions of the issue. This happens in most of jurisdictions.
33.
However in our Courts
Amicus Curiae also have a significant impact in PIL proceedings. Unlike amici
in U.S. litigation, who generally make sua sponte submissions supporting one
side in the adversarial process, an amicus curiae in an Indian PIL case is
generally an individual appointed by the Court to “dig up” relevant factual
data, provide comparative examples from other courts, suggest innovative
remedies, ensure that the Court does not overlook important considerations, and
to assist the court as an officer of the court and keep PIL actions on track
even if the original petitioners lose interest.
34.
I would like to share
a personal experience where the Supreme Court received a post card from
Vineet Kumar Mathur pointing out the pollution caused in River Gomti. This
post card was treated as a writ petition by the Supreme Court of India. The
Supreme Court appointed me as an amicus curiae and entrusted me to draft
a proper writ petition waiving the requirement of verification etc and
requested me to assist the court as Amicus Curiae and orders were passed from
time to time. The Court passed several orders compelling authorities to do
their statutory duties. Several orders were passed and Supreme Court
practically asked me to oversee whether their orders were complied with or not
and while monitoring the case, the Supreme Court delivered a judgement reported
in (1996) 1 SCC 119, on failure to comply with the standards by Mohan Meakins
Breweries, polluting the river, consent was refused by the State Pollution
Control Board under the Water (Control of Pollution) Act, 1974 to them and its
unit was made to stop functioning. However despite orders of the Supreme Court,
the Pollution Control Board concealed the fact that later in response to a
letter written by Mohan Meakins Breweries it had granted consent to them to run
the factory in disregard to the Courts directions.
35.
As amicus curiae, I wrote
to the State Government repeatedly asking them to explain as to on what basis
was the brewery functioning and also to furnish copies of the consent orders
but to no avail. When I brought this fact to the notice of the Court they did
disclose the details of consent given by the Pollution Control Board. Then in
view disclosure of the correct facts by filing affidavits and documents, the
Supreme Court issued a notice to three members of State Pollution Control Board
and to the Managing Director of Mohan Meakin Breweries to show cause why they
should not have been punished for contempt of the Court for granting consent in
violation of orders of the Court. In the contempt proceedings, the
Supreme Court held that grant of consent was in clear violation of the court’s
order. However, having regard to the affidavits filed by the two officers
explaining reasons for and circumstances in which consent was granted to the
unit, the unconditional apology tendered by the members of State Pollution
Control Board was accepted by the Court. At the same time severe warning was
administered to them that repetition of any such violation was to be viewed seriously.
However, the owner of brewery was punished under the Supreme Court’s contempt
jurisdiction.
36.
Thereafter in that
matter an order reported in (2002) 10 SCC 573 was passed directing the State to
acquire necessary land indifferent cities through which the River Gomti passed,
after identifying land necessary for having oxidation ponds. The court further
directed that an affidavit in this respect was to be filed by the State and the
same was also to be served upon me as amicus curiae. Further directions were
given by the Court in order reported in (2002) 10 SCC 574 regarding compliance
of above discussed direction of the court. Thereafter several orders were
passed by the Supreme Court issuing directions to various authorities to check
the pollution caused to River Gomti and by order dated 25th July,
2007 this writ petition was directed to be transferred to the High Court of
Allahabad for further monitoring.
VI.
COMMITEES
AND COMMISIONS
37.
Since PILs are filed
straightaway at the level of the Supreme Court or the High Courts, the parties
do not have a meaningful opportunity to present evidence on record before the
start of the court proceedings. It may also be the case where a genuine
petitioner filing a PIL faces difficulty due to lack of access to information.
Additionally, the Courts usually are concerned with the importance of the cause
and persist with the case on its own even where it finds that the petitioner is
not acting bona fide or where the petitioner does not wish to pursue the case
further. In such cases, the role of petitioner is terminated.
38.
To overcome this
problem, our Courts have developed the practice of appointing ‘fact-finding
commissions’ on a case-by-case basis which are deputed to inquire into the
subject-matter of the case and report back to the Court. Also in cases where
the Court in the first instance calls for a response from the Government, local
authorities or any other opposing party. Where the objectivity or veracity of
the response is in doubt, or where there is no response at all, the Court will
appoint commissioners to verify the facts and submit a report to the Court.
39.
These commissions
usually consist of experts in the concerned fields, District Judges,
journalists or lawyers. For example in the case of M. C Mehta v. Union of India
reported in (1994) Supp 3 SCC 717, the Central Pollution Control Board was
appointed as a fact finding commissioner. Similarly in the case of S. Jagannath
v. Union of India reported in (1997) 2 SCC 87 and In Re Bhavani River Shakti
Sugars Ltd. reported in (1998) 3 SCC 545 the National Environmental Engineering
Research Institute was appointed. The power to appoint commissioner in civil
matters emanates from Order XXVI of the Civil Procedure Code, 1908 and Order
XLVI of the Supreme Court Rules.
VII.
JUDICIAL
ACTIVISM AND PUBLIC INTEREST LITIGATION
40.
Earlier, in England
there were two kinds of courts namely: Equity Courts (Court of Chancery) and
Common Law Courts. Equity Courts used to decide cases applying the principles
of equity i.e. justice, equity and good conscience. Whereas the Common Law
Courts used to decide cases basing on common law i.e. the principles evolved by
the Judge, during judicial pronouncements. The formulation of those new rules
by the then courts to settle the conflicting positions that had arisen in
certain cases was denoted as 'Judicial Activism'. In India, almost all laws
have originated from or referable to the English Common law.
41.
The doctrine of Separation
of Powers was propounded by the French Jurist Montesquieu. It has been adopted
in India as well since the Executive Powers are vested in the President,
Legislative powers in the Parliament and State Legislatures and the Judicial Powers
in the courts the Supreme Court, being at the Apex level. However, the adoption
of this principle in India is partial and not total. This is because even
though Legislature, Executive and the Judiciary are independent yet Judiciary
is entrusted with the right to strike down laws and executive actions, if
they violate Constitution or laws. On the other hand, in case of absence of
laws on a particular issue, Judiciary at times on matters of public importance,
issues guidelines and directions for the Legislature to follow, till they make
appropriate valid laws in order to fill in the vacuum. This is an innovation
made by the Bar and the Bench together.
42.
In the case of
Fertilizer Corporation Kamgar Union v. Union of India reported in (1981) SCC 1
568 the Supreme Court has stressed that judicial activism is essential for
participative public justice. The main rationale for judicial activism in India
lies in the highly unequal social profile of the population of India, where Judges
must take proactive steps to protect the interests of those who do not have a
voice in the political system and do not have the means or information to move
the Courts. This places the Indian Courts in a very different social role as
compared to several developed nations where directions given by ‘unelected
judges’ are often viewed as unjustified restraints on the will of the majority.
It is precisely this counter majoritarian function that needs to be robustly
discharged by an independent and responsible Judiciary. In the case of Bihar
Legal Support Society, through its President, New Delhi v. Chief Justice of
India & Anr. reported in AIR 1987 SC 38 it has been held that:
“The
majority of the people of our country are subjected to this denial of ‘access
to justice’ and overtaken by despair and helplessness, they continue to remain
victims of an exploitative society where economic power is concentrated in the
hands of a few and it is used for perpetuation of domination over large masses
of human beings…… The strategy of public interest litigation has been evolved
by this Court with a view to bringing justice within the easy reach of the poor
and disadvantaged sections of the community.”
43.
In fact in a report
on legal aid published in 1971, it was observed that even while retaining the
adversarial system, some changes may be effected whereby the Judge is given a
greater participatory role in the trial so as to place the poor, as far as
possible, on a footing of equality with the rich in administration of justice.
In the case of Keshavananda Bharti v. Union of India, reported in (1973) 4 SCC
225 the Supreme Court had clearly laid down that judicial activism is indeed a
part of the basic structure of the Indian Constitution. Since then Indians have
never regretted the change. Gaps left by the Legislature and Executive which
have been filled by the Judiciary have characterized this change. The activist
Judiciary has left no stone unturned when it came to the interpretation of the constitutional
rights in an expanded horizon. Some important judgments support this
hypothesis.
a.
Due
process of Law: In the year 1978, the Supreme
Court in its landmark judgement in the case of Mrs. Maneka Gandhi v. Union of
India (UOI) and Anr. reported in
(1978) 1 SCC 248 equated procedure established by law and due process of law.
While delivering the judgement, the Court opined that the phrase
“Procedure established by law” in Article 21 is intended to include the
American phraseology “due process of law”. By virtue of this decision, the
Hon’ble Court endowed itself with the power of substantive scrutiny of a
legislative enactment, thus shifting from mere procedural scrutiny of
legislation. In wake of this judicial pronouncement, the advent and development
of PIL reached its pinnacle.
b.
Payment
of wages: In the case of People's Union for Democratic Rights and Ors. v. Union of India (UOI) and Ors. reported
in (1982) 3 SCC 235 a petition was brought against governmental agencies which
questioned the employment of underage labourers and the payment of wages below the
prescribed statutory minimum wage-levels to those involved in the construction
of facilities for the then upcoming Asian Games in New Delhi. The Court took
serious exception to these practices and ruled that they violated
constitutional guarantees. The employment of children in construction-related
jobs clearly fell foul of the constitutional prohibition on child labour and
the non-payment of minimum wages was equated with the extraction of forced
labour.
- Environment:
In the case of M.C. Mehta and Anr.
v. Union of India (UOI) and Ors.
reported in (1986) 2 SCC 176, () there was a leakage of oleum gas in Shri
Ram Foods and Fertilizer Industries, located in a thickly populated area
of Delhi on 4th December,1985 resulting in the death of an
Advocate in the Tees Hazari Court and injuries to several others. The Petitioner,
an Advocate of Supreme Court filed PIL petition in the Supreme Court under
Article 32 of the Constitution. The petitioner, in his petition requested
the Court to direct the Government to take necessary steps to avoid such
leakages from the industries engaged in dangerous and hazardous
manufacturing processes in future. He also prayed that the Government be directed
to order the Management of the Company to shift the plant to a place far
away from the city. The Supreme Court admitted the petition and evolved
the principle of 'Absolute Liability' and also appreciated the petitioner
and ordered the Shri Ram Foods and Fertilizer Industries to pay him Rs.10,
000 by way of costs.
- The river Ganga
is very famous for its historical significance and religious importance.
It got polluted due to discharge of industrial wastes, effluents, human
excreta into the river. Further, a number of dead bodies are being thrown
into the river at Kasi, with a belief that the dead persons would proceed
to heaven directly since they consider Kasi as holy place and the river as
sacred. In the case of M.C. Mehta v. Union of India reported in (1988)1
SCC 471 (Ganga River Pollution Case), the Petitioner, M.C. Mehta, filed a
PIL petition in the Supreme Court under Article 32 of the Constitution
against the Union of India, Kanpur Municipal Corporation and others for
removal of public nuisance caused by which polluting Ganga water. The
Supreme Court allowed the petition and directed the authorities concerned
to take up necessary steps for removal of the public nuisance and also
appreciated the petitioner for taking imitative in this regard.
- Domestic
Workers: In the landmark judgement
of Delhi Domestic Working Women’s Forum v. Union of India (UOI) and Ors. reported in (1995) 1 SCC 14 is
a classic example where the Supreme Court filled up a crucial vacuum where
neither the Central Government nor the State Government had bestowed any
serious attention as to the need for provision of rehabilitatory and
compensatory justice for women. It issued guidelines for rehabilitation
and compensation for the rape on working women.
- Ecology:
Another crucial intervention was made in Indian Council for Environment-Legal Action v. Union of India (UOI) and Ors. reported
in (1996) 5 SCC 281 wherein a registered NGO had sought directions from
the Supreme Court in order to tackle ecological degradation in coastal
areas. In recent years, the Supreme Court has taken on the mantle of
monitoring forest conservation measures all over India, and a special
‘Green Bench’ has been constituted to give directions to the concerned
governmental agencies.
- Water
Pollution: In the case
of Vellore Citizens Welfare Forum
v. Union of India and others
reported in (1996) 5 SCC 647, Vellore Citizens Welfare Forum, the
petitioner filed a PIL petition under Article 32 for pollution caused to
the river Polar due to the discharge of untreated effluents by the
tanneries and other industries in the State of Tamil Nadu. The Supreme Court
appointed a committee to report on the matter. The Court after examining
the report- submitted by the Committee delivered its judgement making all
efforts to maintain a balance/harmony between economic development of the
people on one hand and welfare of the people on the other. The Court held
that sustainable development is a balancing concept between ecology and
development.
- Sexual
Harassment at work place: In the
case of Vishaka and others V. State of Rajasthan and others reported in (1997)
6 SCC 241, the Supreme Court made space for an issue that would otherwise
not have invited sufficient attention. This writ petition was filed for
the enforcement of the fundamental rights of working women under
Articles 14, 19 and 21 of the Constitution of
India. It was brought as a class action by certain social activists and
NGOs with the aim of focussing attention towards this societal aberration,
and assisting in finding suitable methods for realisation of the true
concept of 'gender equality'; and to prevent sexual harassment of working
women in all work places through judicial process, to fill the vacuum in
the Legislation. The Supreme Court
in this case framed various guidelines including disciplinary action,
complaint mechanism and complaints committee. The Court directed that
guidelines and norms be strictly observed in all work places for
preservation and enforcement of right to gender equality of working women. The Court directed that the said
guidelines would continue till the Parliament makes appropriate legislation.
The Supreme Court also monitors judgments in important PILs to ensure the
compliance by the executive authorities and other parties to the
litigation.
- Criminalisation
of politics: A major problem
that India is faced with in the contemporary time is that of
criminalization of politics. Studies reveal that 62 out of 545 Lok Sabha
MPs and 1258 out of 4,032 sitting MLAs have criminal cases pending against
them. Recently in two PILs namely Lily Thomas v. Union of India and along
with Lok Prahari, through its General Secretary S.N. Shukla v. Union of
India & Ors, reported in (2013) 7 SCC 653, the Supreme Court has struck
down Section 8 (4) of the Representation of People Act, 1951 which allowed
MPs and MLAs to continue in their posts, provided they had appealed or
filed an application for revision against their conviction in higher
courts within three months from the date of conviction. However in order
to overturn the above stated Supreme Court judgment banning
those in jail and police custody from contesting elections, a bill was
introduced in the Rajya Sabha to amend the Representation of People Act,
1951. The Bill was passed unanimously in Rajya Sabha. Finally on September
6, 2013 the bill was also passed in Lok Sabha. Reversing its earlier step,
the Union Cabinet on 2nd October, 2013 took a formal decision to
withdraw the ordinance as well as bill that sought to give protection to
convicted lawmakers in the wake of public outburst. Hence now the current
situation is that the above mentioned judgment reported in (2013) 7 SCC
653 remains the law of the land in this respect.
- Appointment
of Judges: The collegium system for
appointment of Judges of Supreme Court and High Courts has its genesis in
a series of three judgments that is now clubbed together as the
"Three Judges Cases". In the case of S. P. Gupta v. Union of
India reported in 1981 Supp SCC 87 (December 30, 1981) is called the
"First Judges Case". It declared that the "primacy" of
the CJI's recommendation to the President can be refused for "cogent reasons"
by the executive authorities. This brought a paradigm shift in favour of
the Executive having primacy over the Judiciary in judicial appointments
for the next 12 years. On October 6, 1993, came a nine-judge bench
decision in the case of Supreme Court Advocates-on Record Association v.
Union of India case reported in (1993) 4 SCC 441 the
"Second Judges Case". I had a leading role in decision to file a
writ petition as the President of Supreme Court Advocates- on Record
Association. We found that S. P. Gupta judgment gave powers to Executive
which they never claimed earlier. This "Second Judges Case" judgment
ushered in the collegium system. The majority view said
"justiciability" and "primacy" required that the Chief
Justice of India be given the "primal" role in such
appointments. It overruled the S P Gupta judgment, saying "the role
of the CJI is primal in nature because this being a topic within the
judicial family, the executive cannot have an equal say in the matter.
Here the word 'consultation' would shrink in a mini form. Should the
executive have an equal role and be in divergence of many a proposal,
germs of indiscipline would grow in the judiciary." The majority
judgment saw dissent within the bench itself on the individual role of the
Chief Justice of India. In a total of five judgments delivered in the
Second Judges case, Justice Verma spoke for only himself and four other
judges. Justice Pandian and Justice Kuldip Singh went on to write
individual judgments supporting the majority view. But Justice Ahmadi had
dissented and Justice Punchhi took the view that the CJI need not restrict
himself to just two judges and can consult any number of judges if he
wants to, or none at all. For the next five years, there was confusion on
the roles of the CJI and the two judges in judicial appointments and
transfers. In many cases, CJIs took unilateral decisions without
consulting two colleagues.
- In 1998, President of India made
a presidential reference to the Supreme Court as to what the term
"consultation" really means in Articles 124, 217 and 222
(transfer of HC judges) of the Constitution. There is an interesting
background on this reference but I won't like to burden this lecture with
that. The question was if the term "consultation" requires
consultation with a number of judges in forming the CJI's opinion, or
whether the sole opinion of the CJI constituted the meaning of the
articles. The nine judge bench of Supreme Court unanimously laid down nine
guidelines for the functioning of the coram for appointments/transfers;
this came to be the present form of the collegium. Besides, the nine-judge
bench judgment in In Re: Appointment & Transfer Of Judges reported in
(1998) 7 SCC 739 dated October 28, 1998, used the opportunity to strongly
reinforce the concept of "primacy" of the highest judiciary over
the executive. This was the "Third Judges Case". The Supreme
Court in this judgment recommended that the collegium making the
appointments should consist of the Chief Justice and four Senior Most
Judges, the opinion of all the judges should be in writing, if majority of
the collegiums is against the appointment of any person he should not be
appointed. This is the system which has been followed since then, for
appointment of judges. On
a personal note I had the opportunity to make my submissions in all
three cases. In the last case the only private party permitted
to make submissions before the Court was Supreme Court Advocates- on
Record Association, which I represented being its President at that time. A bill is introduced in Parliament to include
more members in collegium like ministers, leader of opposition and experts
in addition to CJI and two judges. There is opposition to this bill which
is passed by Rajya Sabha (Upper House of Parliament) so far.
44.
The only down side to
the increasing activism which I can probably foresee in the existing scenario
is an unnecessary financial burden on the public exchequer without the
authority of legislature. While activists and non-governmental organizations
are anxious to test the constitutionality of legal provisions and the legality
of alleged wrongful acts by the public authorities in order to pursue their
causes, they are, as depicted by Hon’ble Mr. Justice Michael Hartmann of the
final court of appeal at Hong Kong “placing their necks beneath the guillotine
of costs” in the process as they have to bear the uncertain risks of the
respondent public authority’s legal costs if they do not succeed in the
challenge.
VIII.
MISUSE
OF PIL
45.
Of late, a number of
motivated PIL petitions are filed. Thus, PIL has also been termed as
"publicity interest litigation", "private interest
litigation", "politics interest litigation", and even
"paisa (money) income litigation".
46.
In the case of Ashok Kumar Pandey v. The State of West Bengal and Ors. reported in (2004) 3 SCC
349 the Supreme Court observed:
"Public interest
litigation is a weapon which has to be used with great care and circumspection
and the judiciary has to be extremely careful to see that behind the beautiful
veil of public interest an ugly private malice, vested interest and/or
publicity- seeking is not lurking. It is to be used as an effective weapon in
the armory of law for delivering social justice to citizens. The attractive
brand name of public interest litigation should not be used for suspicious
products of mischief. It should be aimed at redressal of genuine public wrong
or public injury and not publicity-oriented or founded on personal vendetta. As
indicated above, court must be careful to see that a body of persons or a member
of the public, who approaches the court is acting bona fide and not for
personal gain or private motive or political motivation or othoblique
consideration. The court must not allow its process to be abused for oblique
considerations. Some persons with vested interest indulge in the pastime of
meddling with judicial process either by force of habit or from improper
motives. Often they are actuated by a desire to win notoriety or cheap
popularity. The petitions of such busybodies deserve to be thrown out by
rejection at the threshold, and in appropriate cases, with exemplary
costs."
47.
Keeping in mind the objective
behind the PIL, using this device for settling personal scores and oblique
interest is a gross abuse of the process of law. It has to be always remembered
that PIL is a mechanism to ensure the welfare of ‘little Indians’ or the cause
of the ‘down trodden ’but not to entertain malicious interests of vexatious
litigants. In fact recently in 2010, in the case of State Of Uttaranchal v.
Balwant Singh Chaufal reported in (2010) 3 SCC 402 , the Supreme Court in a
judgment laid down the following rules that courts should keep in mind before
admitting any writ petition:
“(1) The courts should encourage honest and
bona fide P.I.Ls and effectively disallow those filed for oblique
considerations.
(2) Instead of every individual
judge devising his own procedure for dealing with the public interest
litigation, it would be appropriate for each High Court to properly formulate
rules for encouraging the genuine PIL and discouraging the PIL filed with
oblique motives. Consequently, we request that the High Courts who have not yet
framed the rules, should frame the rules within three months. The
Registrar General of each High Court is directed to ensure that a copy of the
Rules prepared by the High Court is sent to the Secretary General of this
court immediately thereafter.
(3) The courts should prima facie
verify the credentials of the petitioner before entertaining a P.I.L.
(4) The court should be prima facie
satisfied regarding the correctness of the contents of the petition before
entertaining a PIL.
(5) The court should be fully
satisfied that substantial public interest is involved
before entertaining the petition.
(6) The court should ensure that
the petition which involves larger public interest, gravity and urgency
must be given priority over other petitions.
(7) The courts before entertaining
the PIL should ensure that the PIL is aimed at redressal of genuine public
harm or public injury. The court should also ensure that there is
no personal gain, private motive or oblique motive behind filing the
public interest litigation.
(8) The court should
also ensure that the petitions filed by busybodies for extraneous and
ulterior motives must be discouraged by imposing exemplary costs or
by adopting similar novel methods to curb frivolous petitions and
the petitions filed for extraneous considerations.”
48.
The compilation of guidelines issued by the Supreme
Court which I have already discussed above clearly enumerate the various kinds
of matter that can’t be entertained under a PIL inter alia including matters
pertaining to Landlord-Tenant matters, Service matters and those pertaining to
Pension and Gratuity, Complaints against Central/ State Government Departments
and Local Bodies above and admission to medical and other educational
institution etc.
IX.
CONCLUSION
49.
PIL has been a
blessing in disguise and is essential for the inclusive growth of our nation. The
commitment of Indian judges to social action litigation has reflected their
conviction that the Courts are bound to make a meaningful and relevant
contribution to the alleviation of tensions and to the preservation of social
fabric. The phenomenon is one which seeks to reach out to the benefits of
community bereft of influence and privilege and to assure to them at least in
fundamental sense, the benefits of legal order. The ultimate aim of PIL is the
well being of larger number of people. The need of PIL is essential, though the
Courts should always be aware that vexatious and frivolous litigants be
disallowed and discouraged, and be suitably penalized.
50.
PIL has played an important role in justice delivery system
and has been a boon to the Indian public as it has afforded a ladder to justice
to disadvantaged sections of society, some of whom might not even be
well-informed about their rights or lack resources to approach the courts.
Furthermore, it has provided an avenue to enforce diffused rights for which
either it has been difficult to identify an aggrieved person or where aggrieved
persons have no incentives to knock at the doors of the courts. PIL has also
contributed to good governance by keeping the government accountable. PIL has enabled civil society to play
an active role in spreading social awareness about human rights, in providing
voice to the marginalised sections of society, and in allowing their
participation in government decision making. The
public opinion in India is largely in favour of PIL and large majority believes
it to be a great boon to people of India specially who don't have resources to
approach the courts.
51.
In the end I would
like to conclude by saying that the device of Public Interest Litigation may
have its detractors, but it has played an invaluable role in advancing our
constitutional philosophy of social transformation and improving access to
justice.
52.
Friends I was very
happy that 12 Harvard krokodiles came to Delhi and performed before the
President of India in the auditorium of presidential palace known as
‘Rashtrapati bhavan’. The performance was watched by Judges of our Supreme
Court, High Courts and by the members of Rashtrapati bhavan’ and many other.
Everybody admired the performance both in Delhi and Mumbai.
53.
Ladies and gentlemen
as president of Harvard club of India as well as president of confederation of
Indian bar I invite you to visit the Supreme Court of India, spend some time
there and attend some of the Public Interest Litigation matters in the
laboratory of highest Court of India, since seeing is believing.
54.
I would like to thank my alma mater for presenting me with
this wonderful opportunity and to each one of you ladies and gentlemen for
lending me a patient ear. Thanks a million
© Pravin Parekh
President, Harvard Club of India
October 8, 2013